Request By:
John Gerard Patten
Steven Katkowsky, M.D.
Mary Ann Stewart
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Northern Kentucky Independent District Board of Health violated the Open Records Act in the disposition of John Gerard Patten's December 18, 2008, request for meeting agendas and written communications from the District Director of Health to Mr. Patten from January 31, 2008, to June 30, 2008. For the reasons that follow, we find that the conflicting evidentiary record precludes this office from conclusively determining that the Board violated KRS 61.880(1) in failing to respond to Mr. Patten's request within three business days. Clearly, however, the Board otherwise complied with the Act by disclosing all existing responsive records in its possession to Mr. Patton.
In his letter of appeal, Mr. Patten stated that on December 18, he faxed and mailed his request to the District. He did not provide this office with a copy of a fax confirmation sheet. The District acknowledged receipt of Mr. Patten's request by U.S. Mail on December 22 but did not acknowledge receipt of his faxed request. The District indicated that Director Steven R. Katkowsky responded on December 24 by providing Mr. Patten with all requested agendas and denying the existence of any communications as described. Continuing, the District observed:
On January 5, 2009, Dr. Katkowsky's secretary, Karen McGarr, noticed that the letter sent to Mr. Patten on December 24th had the incorrect zip code typed on it. The zip code was incorrectly identified as 41017-2527, when in fact the correct zip code is 41075-2527. Hence, on that same date, Ms. McGarr sent a second set of copies to Mr. Patten, along with an invoice reflecting the cost of .80 cents. 1 Mr. Patten did not respond to Ms. McGarr's correspondence.
The District was not required to, nor did it, use certified mail. It therefore could not provide this office with a copy of the return receipt for either letter. Neither Dr. Katkowsky's December 24 letter nor Ms. McGarr's January 5, 2009, letter was, according to the District, returned by the United States Postal Service. 2
The record on appeal is devoid of probative evidence that Mr. Patten faxed his open records request to the District on December 18. The record on appeal is also devoid of probative evidence that the District mailed a written response to Mr. Patten on December 24, that that response was received, and, if so, on what date. The parties agree that the request reached the District on December 22. The District acknowledges that as a result of a typographical error, and the apparent presumption that the December 24 response may not have reached Mr. Patten, Ms. McGarr mailed a response containing the requested records by letter dated January 5 and postmarked January 6. Mr. Patten initiated this appeal on December 31, asserting that he had received no response to his request. In subsequent correspondence, he acknowledged receipt of the January 5 letter only.
We are reluctant to assign error based on the paucity of probative evidence presented in this appeal. Accordingly, we are unable to conclusively resolve the procedural issues raised. The Attorney General is not equipped to resolve factual disputes relating to the actual delivery and receipt of an open records request or agency response. See, e.g., 08-ORD-066 and authorities cited therein. Any delay beyond three business days, without an accompanying explanation per KRS 61.872(5), is sufficient to establish a violation of KRS 61.880(1) requiring agency response within that time frame. The record on appeal does not prove or disprove such a delay. Our analysis can proceed no further as to the District's compliance with the procedural requirements of the Act. We find no other error in the District's disposition of Mr. Patten's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 That letter was, according to Mr. Patten, postmarked January 6.
2 Dr. Katkowsky's response described the records that could not be produced based on their nonexistence but did not mention the costs of reproduction or include an invoice. Ms. McGarr's letter was, essentially, an invoice with a duplicate set of the responsive records along with a copy of Dr. Katkowsky's original response.